Court name
High Court of eSwatini
Case number
Criminal Case 17 of 1998

R v Shongwe and Others (Criminal Case 17 of 1998) [2000] SZHC 6 (08 February 2000);

Law report citations
Media neutral citation
[2000] SZHC 6
Coram
SB Maphalala, J

                                                               CRIMINAL CASE NO. 17/98

In the matter between

REX

VS

SIBUSISO SHONGWE
MILTON MAMBA
ROBERT SHONGWE
DALADI MALULEKA
VUSI SHONGWE
MACILONGO MAMBA
EPHRAEM MAMBA
NTOMBIFUTHI SHONGWE
SIPHIWE SHONGWE
SINDI KHUMALO
ZODVWA MAMBA
THOBILE TSABEDZE
BOY MAMBA
FANA MKHONTA
MFANZILE MALULEKA
STEPHEN TSABEDZE

Coram                                                                   S.B. MAPHALALA – J
For the Crown                                                          MR. J. MASEKO
For the Defence                                               MR. C. NTIWANE

 


JUDGEMENT
(08/02/00)


 

Maphalala J:

 

The accused persons all of Mashobeni area in the Northern Hhohho in the District of Hhohho stood charged with the murder of Mandlenkosi Shongwe, a Zionist church priest, and his wife Busisiwe Shongwe. The charges preferred against them are based on the doctrine of common purpose. At the close of the crown case two of the accused persons were acquitted and discharged upon the crown making a concession that it had not made up a case requiring them to their defence in terms of Section 174 (4) of the Criminal Procedure and Evidence Act No. 67 of 1938 (as amended). These are accused number 13 and 15 being Boy Mamba and Mfanzile Maluleka respectively. The rest of the remaining accused having been brought to their defence and having also given their own side of the charges preferred against them.

The accused persons all pleaded not guilty to the offences and they are represented by Mr. C. Ntiwane. The crown is represented by Mr. J. Maseko.

According to the post-mortem report entered as exhibit “B” relating to Mandlenkosi Shongwe, the deceased in the first court (hereinafter called the “priest”). The cause of death is recorded by the pathologist who examined him as “haemorrhage as result of multiple chop wounds”. The good doctor went further to detail the extent of the injuries on the body of the priest, thus:

The following ante mortem injuries seen;

1.      

Chop wound over forehead centre to parietal region 11 x 12cm bone deep and right forehead to tempora parietal region 21 x 1.9cm bone deep with intra cranial haemorrhage.

2.      
Chop wound over back of neck 16 x 4.7cm cervical vertebrae deep.

3.      
Chop wound over left cheek 15 x 3.4.cm, right check 9 x 3.7cm facial bone deep.

4.      
Chop wound over left ear 7.2. x 11cm bone deep.

5.      
Chop wound lower region neck right 9 x 2.4cm, 7 x 4cm muscle deep

6.      
Chop wound over right shoulder 14 x 3.9cm bone deep.

7.      
Chop wound over left elbow 4 x 2.1cm bone deep

8.      
Chop wound over left forearm 13 x 4.2cm muscle deep

All margins of wounds are abrasions and contusions.

In respect of the deceased on count two the doctor observed that she also died as a result of “haemorrhage as a result of multiple chop wounds” and the injuries are described in the following manner:
 

“1.       Chop wounds over back of neck 5 x 3cm, 6.2 x 4cm and 4.3 x 3cm bone deep involved muscles, vertebrae cervical spinal cord at 2-4.

2.      
Chop wounds over occipital region 5 x 2cm vault deep, behind right ear over right parietal region 4 x 2cm and 5 x 1.7cm vault deep with subarachnoid haemorrhage all over brain.

3.      
Chop wound over right cheek 13 x 2.7cm bone deep involved muscles, facila bones, nerve vessels.

4.      

Chop wound over right supraclavicular area 7.1. x 3cm muscle deep and right shoulder 6 x 2.4, 7 x 5.2cm muscle deep.

5.      
Chop wounds over right forearm lower third 6 x 2.7cm and 5.9 x 2.3cm bone deep and over dorsum of hand 9 x 2.1cm 6 x 2.1cm bone deep involved vessels.

6.      
Abrasions over left shoulder 3 x 2.3cm.

7.      
Chop wound over left forearm lower third 9 x 4.7cm exposing cut bones, vessels nerves muscles. All margins of wounds are with abrasions and contusions”

The crown proceeded to call nine witnesses to prove its case and each crown witness was extensively cross-examined by defence counsel. At the close of the crown case defence counsel applied that the accused be discharged in terms of Section 174 (4) of the Penal Code. The application was strenuously resisted by the crown. After hearing argument the court handed down its ruling on the application refusing the application and acquitting number 13 and 15 on the basis of the crown’s concession that there was no case against them. All the accused persons then each took the witness stand and gave evidence in their defence. They were also thoroughly cross-examined by the crown.

Before delving into the detailed evidence given by both sides I feel it is imperative to give a bird’s eye view of the facts of the matter for one to gain a greater understanding of what happened on that fateful Sunday morning. The facts of the matter briefly put are as follows. On the Sunday morning of the 16th March 1997, the two deceased persons who were husband and wife were sitting next to one of their huts with their children including PW1 and PW3. They were seated in a circle preparing maize cobs to be stored in the family silo - a common family chore in the rural areas during that part of the year. They were involved in this family chore and thereafter they were to prepare for church which happened to be within the homestead. The church is called the Sibetsamoya Church in Zion. This church has some interesting history in that most of the accused persons used to worship there and some of them held positions of responsibility in the church until they split and formed their own church along the same doctrine called the Heaven Church in Zion. The rebels were disgruntled with the way the deceased in count one was conducting things. More of this will come later in the course of this judgement. Reverting back to the happenings on the day in question, as the family was busy with the preparation of the maize, three men wearing heavy coats approached them demanding to speak to Shongwe (the priest). According to testimony by crown witnesses these men were in an aggressive mood. They were identified as accused number 1, 2and 3. Shongwe tried to calm them down. As he was putting on his shoes these men produced pangas from their heavy coats and started hacking the couple. The children (including PW1 and PW3) ran helter skelter. PW1, PW3 and PW4 related what took place. The other group comprising the rest of the accused persons arrived shortly thereafter and also participated in varying degrees in the attack of the two. After the attack the group went away singing a song to the effect that they were going to lead trouble free lives as they had killed a “witch”. PW1 and PW3 told the court that the three who first approached were accused number 1, 2 and 3. The group then assembled in a sport ground nearby after collecting some members of the public. They then went to the police where they surrendered themselves and handed their weapons to the police. They were subsequently charged in respect of these offences and were thereafter dispatched to Piggs Peak Police Station.

The aforegoing is the story advanced by the crown witnesses in capsule form. The accused persons each gave his/her version of what took place that Sunday morning. The common thread that runs through their evidence in defence is that they were not present at the homestead of the deceased when the gruesome occurrences took place save for accused number 1, 2 and 3 whose story is that they were there on legitimate business until Shongwe (deceased on count one) started the whole fight. Their is version that this was a fight where everybody was kicking whichever way in defence against Shongwe’s aggression. I must say, though prematurely that there is more to this version than meet the eye.

Now I proceed to outline the salient points in the evidence of each crown witness and their responses to cross-examination, thus:

PW1 Nhlanhla Shongwe who is the son of the deceased person. He deposed at length the sequence of events of what took place that day. I must say this witness was greatly affected by what happened to his parents in that he broke down in tears on several occasions and the court had to adjourn from time to time to allow him to gain his composure. All in all despite his emotional outbursts which are understandable in the circumstances he gave his evidence clearly. He told the court that as the family was seated in a circle preparing maize for storage they heard dogs barking. Shongwe their father instructed his eldest brother Mduduzi to investigate the source of the dogs’ reaction. He went towards that direction and shortly came back with a report that Robert (accused no.3) with two other men were coming. Indeed the three approached to where they were seated. These were accused number 1, 2 and 3 and were wearing heavy overcoats. Milton (accused no.2) asked his father in an aggressive manner if he (his father) was thinking for them. Shongwe asked them to sit down and explain what they meant by that statement. At that juncture Robert (accused no. 3) produced a bush knife from his heavy coat and the other two followed and produced their bush knives in unison. Accused number 2 was the first one to strike his father and the other two also descended on him hacking him all over the body. PW1 tried to take an axe which was nearby to try and assist his father but he was overwhelmed by the situation and decided to run to his grandfather’s homestead nearby to report the incident. PW1 went further to describe in graphic detail how his mother was also attacked in the same manner. At that time the rest of the accused persons had joined the fray. Accused no. 4 was inside a four-roomed house and at that time they had started to torch the house with fire. After the group had done the deed they went out of the Shongwe homestead carrying white flags smeared with his parent’s blood singing a song that they were now going to live trouble-free lives as they had killed the two “witches”.

PW1 further told the court what role each accused person played in the whole sordid affair. Accused number 1, 2 and 3 were the first to attack the deceased with the bush knives. Accused no. 7 was also present. He was carrying a baton and was busy waving it in the air next to his mother. He did not see him use the baton. Accused no. 9 was also present. He did not see her doing anything. Accused no. 13 was present but he did not see her doing anything. Accused no. 14 was also present but he did not know how he featured in the whole scheme of things. Accused no. 15 was also present but he did not see him do anything except that he was the first to run away and surrendered himself to the police. Accused no. 8 struck his mother several times but the main perpetrators were accused no. 1, 2 and 3.

It also emerged from the evidence of PW1 that most of the accused persons are related one way or the other to the deceased persons. He went further to explain accused participation in their church until they split to establish their own church called the New Heaven Church in Zion.

After the incident he went to report to his grandfather who had his homestead nearby and later reported the matter to the police and other family members in Mbabane. In chief PW1 told the court that he could recognize the weapons used in the killing of his parents. He went further to relate what each accused person was carrying on that day. He implicated accused no. 1, 2, 3, 7 and 8.

This is about the extent of this witness testimony

The witness was cross-examined at length in a searching and exacting cross-examination by Mr. Ntiwane. The witness confirmed that most of the accused persons were related to him and that most of them used to attend their church before they went to form their own church. He told the court that he was not aware of any reasons leading to this exodus. It was suggested to him by defence counsel that the reason they left their church was because Shongwe (the deceased in first count) was bewitching them such that one member of the church died in a car accident and other members were injured in that occurrence. The witness expressed that he was not aware of the said accident. It also emerged under cross-examination that the deceased in count one was a traditional healer-cum-preacher and that he kept his medicines and herbs in a special hut called “indumba”. It emerged further that at some point before the incident the home of the Shongwes was bombed by unknown people using dynamites. This became a hot issue that it was reported to the police and some of the accused persons were implicated in that incident. The traditional authority (umphakatsi) were also involved in resolving this problem. It was also put to him that when his father was attacked his attackers accused him of practising witchcraft, however he answered that in the negative. It was also put to him that it was the deceased who provoked the fight by throwing a maize cob at them. A question was also put that accused no. 13 was not present when the assault took place and this question was answered in the negative. The defence put forth under cross-examination of PW1 that when the accused arrived at the homestead they went there to discuss a certain issue with his father who instead attacked them. This was denied by PW1.

The evidence of PW1 ended in that note.

PW2 R.M. Reddy the Pathologist who examined both the deceased persons was called and gave vivavoce evidence. He compiled two reports of his findings, which are contained in exhibits “B” and “C” for deceased in count one and count two respectively. His general observation was that the injuries inflicted on the bodies of the deceased were caused by sharp objects like axes and bush knives. That in his experience the weapons before court would have been used in inflicting the injuries on the deceased persons. Under cross-examination the doctor deposed that these bodies did not have injuries exhibiting the use of sticks.

PW3 Thulisile Shongwe was the next witness who gave evidence. She is the daughter of the deceased person and a sister to PW1. She was also present when the assault of her parents took place. She also told the court that she knew most of the accused persons before court and that most of them were related to them. On the 16th March 1997, they were seated with her parents and her other siblings including PW1 preparing maize for storage. They heard the dogs barking and her father sent Mduduzi to go and check the source of the dogs’ reaction. Mduduzi came back running and reported that there were people coming wearing black coats. These were accused no. 1, 2 and 3. They approached them and accused no. 3 said;

         “Shongwe what are you doing to us?”

Her father asked them to sit so that they can talk. Her father was about to take his shoes when accused no. 2 produced a bush knife from his heavy coat and started attacking her father. The other two joined in with their own bush knives and started hacking her father who was then trying to run away from this vicious attack. He was running away towards his healing hut (indumba) but he was prevented by the threesome. He then fell down. Accused no. 3 then came to where he was and said the dog has not yet died where after he chopped him with the bush knife on his back. They then started to look for her mother who had gone to hide in a two-roomed house. They broke down the door and pulled her out and she was also hacked with the bush knives all over her body. At that point she observed that the persons who were chasing after her were accused no. 1, 5, 7 and 8. The others were following. After they have killed the two they proceeded to set on fire the “indumba”. This witness went further to tell the court who was carrying what amongst the accused persons. She also identified some of the weapons exhibited before court and how each related to each accused person.

This is about the extent of PW3’s evidence –in-chief.

She was also subjected to lengthy cross-examination, which followed the same lines as the one directed at her brother PW1. I must say that she showed strange fortitude despite what she had experience a striking contrast to her older brother PW1 who broke down in tears a number of times when giving his evidence in-chief. She told the court under cross examination that the three people who first came to her home on the 16th March 1997, were accused no. 1, 2 and 3 and these were followed by the rest of the accused persons. She further told the court that her parents were assaulted when all the accused person were within the homestead. The following exchange took place between PW3 and defence counsel and its import will become apparent later in the course of this judgement:

         Q:       When this thing happened were you that hysterical?

         A:       I do not recall crying when this happened.
 

Q:       My instructions are that you were hysterical coming in and out of the house like any other child would do when seeing such a thing?

A:       I did not cry.

Q:       When your father fell you were

standing next to accused no. 6, 7, and 12 (my emphasis) and cried next to the two roomed house by the gate.

A:       I never stood with anyone.


 
The witness further disputed her brother’s testimony that there was no axe in the yard when the three men pounced on her father and mother. She confirmed PW1’s evidence that the women did not assault her father but blocked his way so that he could not get into his hut. The women were only involved in the assault of her mother. I must point out the tenor of the cross examination directed to this witness was not disputing that the accused persons were present at the deceased homestead at the material time but what they did to who with what was put to issue. The importance of this observation will become evident when I consider the evidence of the accused persons.

This is about the extent of the cross examination of PW3.

PW4 Sicelo Dlamini was then called on behalf of the crown. He was also present at the home of the deceased that fateful morning. He had come to attend church but since he was early he joined the Shongwe family in what they were doing. He saw accused no. 1, 2 and 3. He saw accused no. 1 producing an axe and accused no. 3 produced a bush knife and accused no. 2 produced an axe. These three people started hacking the two deceased. He then decided to run away. He told the court that these people when they first came asked Shongwe what he was doing to them? Shongwe invited them to sit down and was trying to put on his shoes when they started to attack him. PW4 then ran home. Later on when the situation was calm he came back to the Shongwe homestead. He further said there were other accused persons who came to the Shongwe homestead but this group came late. He saw accused no. 5, 7 and 8. The rest of the accused persons he did not recognize but they were present.

This is the extent of this witness testimony.

The crown then called PW5 Aaron Mamba. He told the court that he knows all the accused persons before court that on a date he could not recall, as he was an uneducated old man he saw the accused persons as a group. They approached them (other people in the neighbourhood) and they requested that they go to the sports ground. They found him at his homestead. These people were carrying an assortment of weapons. They then all proceeded to Horo Police Station where they found that the police officers were not in the police station. The whole group sat down outside the police station and waited for the police. After a while the police came and asked for the elders in the group. The old people entered the station. They told the police that they know nothing about this matter that the accused persons were going to explain why they had come to the station.

This witness was cross-examined briefly by defence counsel.

The crown then called PW5 2184 Sergeant Bheki Maseko who is a Scenes of Crime Officer. He took photographs of the scene of crime and handed the pictures he took and they were entered as exhibit “A” collectively.

He was not cross-examined by the defence.

The crown then called PW6 2476 Detective S. Mlilo who took part in the investigation of this case and was stationed at Horo Police Post at the time. He related that on the 16th March 1997, he received a report from PW1 (Nhlanhla Shongwe). Having received the report he together with Constable Khumalo proceeded to the homestead of the deceased persons. On arrival at the homestead he was met by PW3 (Thulile) at the gate who showed him where her father was lying next to a roundavel which had already been gutted down by fire. He saw that the body was cut all over. Since he was still breathing he instructed that he be taken to Piggs Peak hospital. PW3 further took him to a place behind a church within the homestead. There he found the body of PW3’s mother. He then proceeded to Matsamo to get re-enforcements. When he came back to the Scene of Crime, police officers from Piggs Peak were already there. He proceeded to search for the accused persons. He received a radio message there that a large crowd had assembled at the Horo Police Post. He then proceeded to the police post. At the police post he found a big crowd assembled just outside the gate. 1185 Mavuso who was with him greeted them and wanted to know why they were there. One of their spokesman Mcekeza Mamba told them that they had come to bring some people who had killed two people at Mashobeni area. Mavuso then instructed Mcekeza to request all those who participated in the commission of the crime to enter the station with their weapons. They all went into the charge office. This witness at this juncture went back to the scene of crime to take statements from witnesses and to attend to other matters. He left the investigation of the crowd in the hands of Inspector Hlatshwayo. This witness told the court that he knew most of the accused persons as he was working in the area. In his police report he took a list of all the suspects and also told the court that the majority of these people were carrying weapons. Accused no. 16 Stephen Tsabedze was not in the group on the 16th March 1997, he was arrested later and he saw him at Piggs Peak Police Station.

This witness further revealed to the court that accused no. 2 Milton Mamba with two others had come to the police post the previous day of the incident who wanted to know if the police had not taken his wife who was with soldiers for interrogation. He told them that they had not done that but promised to investigate the matter further. The allegation by Milton (accused no. 2) was that the police took his wife to deceased’s homestead so that they would make her agree that it was accused no. 2 who had placed explosives at deceased homestead during 1997. This matter of the explosives was reported to the police on a prior occasion and a police docket was opened. The investigations were still proceeding.

This is about the extent of this witness testimony.

He was cross-examined at length by the defence. There were a number of issues that were put to this witness which I will allude to later in the course of this judgement.

The crown then called 1950 Detective Sergeant Khayelihle Hlatshwayo who was also part of the investigating team in this case. At the time he was stationed at Piggs Peak Police Station. In March 1997, he received a report from Horo Police Post regarding this incident. He proceeded to the Scene of Crime in the company of other police officers. When they arrived at the scene he was briefed by PW7 (Mlilo). They did not find the accused persons at the scene but later gathered that the accused persons together with other members of the community were at Horo Police Post. They proceeded to the police post where they found that accused persons sitting outside the gate. He told the crowd that they are investigating a murder case and wanted to know what they knew about this matter. He cautioned them in terms of the Judges rules. The accused persons then produced various items including bush knives and sticks. They said they wanted to write down what they wanted to say. He then took a list of the items each accused person handed to him and he labeled it and stuck it to that particular weapon with the name of that particular accused person. He then drove all the accused persons to the Piggs Peak Police station where he gave them papers to record what they wanted to say. He again cautioned them in terms of the Judges Rules. At the time there were fifteen accused persons. Accused no. 16 came later at the police station and surrendered a stick.

This is about the extent of this witness testimony. He was cross-examined extensively by the defence. The officer was quizzed that it was not true that he cautioned the accused persons in terms of the Judges rules but he maintained that he did. It was also put to him that he did not caution the accused persons about their handing over of the exhibits and agreed with the defence that he did not because they produced the exhibits after the initial caution. It also emerged from the cross-examination of this witness that the exhibit room where these weapons were kept was leaking and as a result the writing on the tags became smugged. It was then difficult to pinpoint which weapon belonged to which accused person.

The crown then called its last witness PW9 3227 Papa Mabuza who was the custodian of the exhibits and all documents relating to criminal cases at the Piggs Peak Police Station. On the 16th March 1997, he received exhibits in this particular case. He duly entered them in the exhibit register. According to his register the exhibits were as follows:

1.      

Four bush knives
2.      
Two axes
3.      
Four batons

His book did not reflect from which accused persons the exhibits came from. He confirmed what PW8 said that the labels subsequently were destroyed. He told the court, however, that the exhibits before court are the ones handed to him in respect of this case.

He was cross-examined by the defence. It emerged from the cross-examination that there was another officer (Dlamini) who has since died who was responsible in the keeping of exhibits in the police station. Dlamini is the one who received the exhibits and that he (PW3) did not see the exhibits when they were handed in. In the main the thrust of the defence cross-examination was that the court cannot tell if these were the weapons found with the accused, as there were many other similar weapons kept in that exhibit room for other criminal cases.

At this point the crown closed its case whence the defence applied for the discharge of the accused persons in terms of the Criminal Procedure and Evidence Act (as amended). The court heard lengthy submissions for and against the application. After considering the submissions I ruled that all the accused persons had a case to answer.

The accused persons then each gave evidence under oath. I shall proceed to outline briefly the salient points of each accused’s defence. I proceed to deal with that aspect in seriatum, thus:

Accused No. 1 Sibusiso Shongwe who told the court that on the day in question he went to deceased homestead. The previous day of the incident he had met accused no. 2 (Milton Mamba) and accused no. 8 (Ntombifuthi Shongwe) who requested him to go to deceased homestead to enquire why accused no. 8 was taken. They (accused no. 2 and 8) went to the police station on the 15th March 1997. The police officer Mlilo could not go with them that day as he had a matter to attend to at Ndlalambi but told them to meet him at deceased homestead the following morning at 10.00am. The reason for this was for officer Mlilo to mediate between these three and the deceased over the issue of accused no. 8 being taken away. The following day he proceeded with the others to accused persons (and he agrees with PW1 and PW3 that he did come to deceased homestead on the morning of the 16th March 1997. However, on that day he only had a knopstick which he usually carried for protection. It was not true that he was carrying exhibit “3” viz, an axe. PW1 and PW3 were not telling the truth in that regard. It was also not true that prior to going to the deceased homestead he met the other accused person except for accused no. 2, 3 and 8. But at the homestead he arrived alone and did not come in a group. He found accused no. 2 and 3 already there. He came there four minutes after their arrival. When he got there he found that there was a fight he saw PW1 who had an axe and tried to attack him but he chased him with his knopstick. PW1 ran into the banana trees nearby. When he turned back he saw that accused no. 2 and 3 were fighting the deceased in count one. He decided to turn back and he ran away. It was not true that he was involved in hacking the deceased and his wife. He ran to the maize field and after a long time he came back to the scene and he found many people walking up and down in the homestead. Thereafter they were instructed to go to the police by the elders of the community who included Mcekeza Mamba, Aaron Shongwe, Dinane Shongwe and Robert Maluleka. He joined the group because he was told that all those who were present should go to the police so he did not have much of a choice. He surrendered his knopstick at the Horo Police Post and that they were not cautioned in terms of the Judges’ rules according to the testimony of the police officers. He went further to outline in great detail that there were strong allegations of witchcraft leveled at the priest after members of their church were involved in a car accident as a result of which one Phindile died. The priest the previous day of the accident had told Phindile that he wanted her to come and look at his home. Members of the church who were present during this utterance interpreted it to mean that the priest was going to bewitch Phindile and make him a “zombie”. This matter was even taken to the chief’s kraal for resolution. Another incident which cemented their belief that the priest was going to bewitch them was an utterance he made prior to the case. The background to this is that members of the New Heaven Church in Zion had released a Gospel cassette which was selling well in those circles. The priest told them that as they were enjoying the proceeds of their success they should not forget to put aside some money to buy their own coffins. He stated under oath that he regarded the priest as a bad person who practiced witchcraft even in his church activities in that during prayer services they were made to run around in a circle a practice used by the Zionist sect when conducting their prayer services called “kushaya siguqo”. After the exercise the priest would wipe their sweaty foreheads with a cloth and would squeeze the sweat into a dish. The contents thereon would then be taken to the healing hut (“indumba”) and they do not know for what purpose. But what became evident as time went by was that some members were affected with a number maladies the source of which were traced to the priest.

This accused person vehemely denied that he heard people singing a song after the killing let alone participating in this celebratory activity.

This is about the extent of this witness testimony. He was cross-examined at length by the crown. A number of important question were put to him more importantly it was put to him that his defence was never put to the crown witnesses at all but a general question by the defence was the accused persons did go to the priest house but at different times. I must say from my observation this witness was hard pressed to come with a satisfactory answer. This witness in cross-examination tried his best to distance himself from what occurred at the Shongwe homestead on the day in question as reflected in the exchange under cross-examination:
 

“Q:       I further put it to you that in the process together (accused 1, 2 and 3) burnt one of the houses in the Shongwe homestead?
A:       That is not true. As I have told the court that when all this happened I ran away.
Q:       Who did you find fighting?
A:       The Shongwe family with accused no. 2 and 3.

DW2 Milton Mamba also gave a lengthy account of his defence. His story is similar in some material respects to that of DW1. He confirmed that he went to the police station with accused no. 1 and 8 the previous day of the murder. He was also be witched and it was suspected that the cause of his ailments was the priest who was using witchcraft practices and as a result he left the Sibetsamoya Church in Zion. He also told the court that they asked officer Mlilo to come and mediate in the dispute between them and the accused persons over the abduction of accused no. 8. They were to meet officer Mlilo at the Shongwe homestead on the 16th March 1997, at 10.00am as officer Mlilo had a prior commitment somewhere else. The following morning he proceeded as planned to the Shongwe homestead where he met accused no. 3 along the way. Accused no. 3 asked him where he was going and explained to him his mission. He requested accused no. 3 to accompany him to be a witness in the deliberations. He denies the evidence of PW1, PW3 and PW4 that they were wearing heavy overcoats that morning. When they entered the Shongwe homestead the dogs started barking and Mduduzi held them so that they could come into the homestead. He was carrying a walking stick. The priest then greeted them and asked them what was their mission so early in the morning. He related what they had come for that officer Mlilo was to come and mediate between them. The priest asked them what was the issue to be discussed and they told him that it is the matter concerning accused no. 8’s disappearance. After he heard this, the priest said they were mad and attacked them by throwing maize cobs at them. He then took his walking stick and ran away to the sport ground. They were then taken by the community people to Horo Police Station. What transpired thereafter he expressed in similar terms used by accused no. 1.

He was also cross-examined at length by the crown. The cross-examination followed the same trend adopted in the cross-examination of DW1.

DW3 Robert Shongwe. He is also a member of the splinter church the New Heaven Church in Zion. He also gave an equally lengthy account of events on the 16th March 1997. He also alleged that the priest bewitched him. He told the court that on the day in question he met accused no. 2 who asked him to join him to the Shongwe homestead. He related what took place at Shongwe homestead in similar terms used by DW2 (Milton). That when the priest started to attack them he found a piece of wood nearby to defend himself as he could not run away as the dogs were barking. Then a fight ensued but afterwards he got a chance and ran away to the direction taken by DW2 (Milton). Thereafter his evidence is similar to that given by DW2 of what subsequently took place.

He denied the evidence of the crown witnesses that he was the one who said:

                  “The dog is still alive”.

He was not carrying the bush knife and that he hacked the two deceased to their death with the other accused persons.

He was also cross-examined at length by the crown. The cross-examination was similar in essence to that directed to the other accused persons who have already given evidence. He denied that he had the bush knife (exhibit “1”) and that he was wearing a heavy coat. He told the court that it was the priest who was in a violent mood and started attacking them when they had come peacefully. I must comment that there are a number of material facts which were not put to the crown witnesses.

DW4 Daladi Maluleka (accused no. 4). He told the court that he was not a member of either church. On the 16th March 1997, he left home with accused no. 15 (who has been discharged) together with accuse no. 6 (Macilongo Mamba). They went to a Shongwe homestead to fetch their garments they used during church services. As they were near the Shongwe homestead they heard a noise eminating from the deceased homestead. They thought these were children crying. But later noticed that this was an alarm being raised. They then ran to the scene and found the priest who is his uncle lying down in a pool of blood. He then asked PW3 what was the problem but Thuli (PW3) did not reply. She did not reply as she was crying. The evidence of PW3 that she did not cry is not true. He then told his brother that they should go and report the matter to their mother at home. They were accompanied by Macilongo to make this report. On hearing this report their mother fainted and collapsed.

Thereafter he went to the sport ground. They were joined by other community members. They all proceed to Horo Police Post.

He was also cross-examined at length by the crown. The cross-examination took the same form as the proceeding accused persons who have already given evidence. I must also state that the defence advanced by this witness was never put to any of the crown witnesses.

DW5 Vusi Shongwe (accused no. 5). He also gave evidence that he was bewitched by the priest. On the day in question in the morning he heard an alarm being raised as the Shongwe homestead was near he ran to the scene. Some neighbours were also rushing to the Shongwe homestead. He saw PW3 (Thulile) on her own and she was crying. He then saw the deceased lying down in a pool of blood. Thereafter, he was sent by his aunt to Malambe’s place to collect her money. As he was proceeding there he met accused no. 4’s father who ordered him to join the group which had already assembled at the sport ground. They then proceeded to the Horo Police Post. This witness then described in some detail what transpired at the police station up to the time they were taken to a Magistrate at Piggs Peak for a formal remand. He denied that he was carrying a baton as testified by PW1. He never assaulted PW3’s mother.

This witness was cross-examined at length by the crown. The cross-examination followed the same trend as in the cross-examination of the preceeding witnesses. All in all this accused person denied that he participated in the killing of the priest and his wife.

DW6 Macilongo Shongwe (accused no. 6). He also answered the alarm raised at the deceased homestead. When he entered the gate of the homestead he saw the body of the priest lying in a pool of blood. He saw PW3 and Daladi talked to her but she did not reply as she was crying. Accused no. 4 then told him that they should go and report what had happened. On hearing the news accused no. 4'’ mother fell down and collapsed. Then they were ordered to the sport ground and later proceeded to the police station.

He was also cross-examined by the crown. Again the cross-examination by the crown followed the similar pattern adopted in the cross-examination of the other accused persons. In totality the witness denied that he participated in the gruesome killing of the two people.

DW7 Ephraem Mamba (accused no. 7). He told the court that on the day in question he was from his place of work in South Africa to collect his passport when along the way he met one Sicelo Dlamini. Sicelo was running and he passed him. When he looked up he saw some smoke coming from the Shongwe homestead. He proceeded on his way and the path he was using passed by the Shongwe homestead. When he was at the gate PW1 came out from the homestead running in the opposite direction. He saw that there were many people who came to the homestead. When he looked ahead he saw PW1’s father lying down in a pool of blood. He waited at the gate and some people went passed him to the homestead. He was scared to go inside the homestead and decided to go home. Before he got home he met another boy a Matsebula and went together to his home. They sat together for some time and the Matsebula boy had to go to a soccer match. He then went home. When he got home he received a report that all occupants of the home were taken by the police. He then borrowed a bicycle nearby and proceeded to Horo Police Post.

His evidence from here is similar to that given by the other accused persons who have already given evidence as to what transpired at the police post up to the time the group was conveyed to Piggs Peak Police Station.

He was also cross-examined by the crown and denied that he participated in the killing of the deceased.

DW8 Ntombifuthi Shongwe (accused no. 8). She is married to accused no. 2 (Milton). She is a member of the New Heaven Church in Zion, and was once a member of the Sibetsamoya Church in Zion. She also testified that her husband was bewitched by the priest and as a result of this she stopped attending the Sibetsamoya Church in Zion.. This witness related in great detail the circumstances leading to her being abducted. On the 16th March 1997, together with her brother they proceeded to the Shongwe homestead. As they entered they met up with PW1 and PW4 who were running away from the homestead. They did not respond but proceeded running. When they got to homestead they found maize cobs scattered all over the yard. She saw PW3 crying moving around the homestead. She asked her if there were any police officers who has arrived. She did not respond. When she looked down she saw PW3’s mother lying down. It was then that he saw some people disappearing into the maize field. She again asked PW3 what was happening and she did not reply. Then she saw a group of people coming from behind the homestead. Her brother called her that they should go home. They then went home. On their way home they were called to join a large group which had assembled at the sport ground. She then related what transpired thereafter.

In a nutshell her defence is that she did not participate in the killing of the two people. She saw some people disappearing into the maize fields. She was not carrying any weapon that day.

This witness was also cross-examined at length by the crown where she explained at length the circumstances leading to her being abducted. That the priest was instrumental in the abduction, as he wanted her to agree that the shoes found at his homestead belonged to her husband. Apparently, this pair of shoes was left by one of the perpetrators in the explosive saga. The priest according to her promised to give her whatever her heart desired if she could agree to implicate her husband. However, she declined the offer. She denied under cross-examination that she participated in the killing and that she was carrying the weapon entered as exhibit “8” by the crown.

DW9 Siphiwe Shongwe (accused no. 9). She is a member of New Heaven Church in Zion. On the 16th March 1997, in the morning she went to the garden to pick some vegetables. This garden is next to deceased home. In the garden he found accused no. 5 and other people who has come to collect vegetables in their respective gardens. They saw smoke eminating from deceased homestead. They then proceeded to the scene where they saw a lot of people milling around the homestead. She did not participate in the killing of the two people.

DW10 Cindi Khumalo (accused no. 10) is a member of the New Heaven Church in Zion. She also told the court she was asleep at home when she heard noise coming from the deceased direction. She was forced by a certain lady who came to her homestead to go and see what was happening. She went there and viewed the events from the gate.

I must say at this juncture in the trial the court went for an inspection in loco to see the area as the witnesses were giving conflicting testimony as regards distances.

This witness led us to the various spots mentioned by the other witnesses. In sum, her evidence is that she did not participate in the killing of the two people. She came after the fact.

DW11 Zodvwa Mamba. She is also a member of the New Heaven Church in Zion, but she used to go to Sibetsamoya Church. She also told the court that on the day in question she had gone to the garden to pick some tomatoes when she saw smoke eminating from the Shongwe homestead. She then saw a group of people running coming from all directions going to the Shongwe homestead. She also joined them to the Shongwe homestead and saw the priest lying down in a pool of blood. After a while she left the scene and went to collect her tomatoes and went home. She did not take part in the killing of the deceased.

DW 12 Thobile Tsabedze (accused no. 12). She is also a member of the New Heaven Church in Zion. She said on the day in question she was sent by her father to collect loin skin from a certain babe Tsabedze. She went there for this chore. On her way back next to the gate leading to the Shongwe homestead she saw a woman lying by the gate facing up. She saw some people trying to extinguish the fire using pipes. She also saw PW1’s father lying on the floor covered in blood. She did not take part in the killing of the two people.

DW13 Mfana Mkhonta (accused no. 14). He was also a member of the New Heaven Church in Zion. On the morning in question he also saw flames at the Shongwe homestead. He ran to the homestead and saw the priest lying on the ground with blood all over him. The other man was asking Mduduzi what had happened and he answered that Milton (accused no. 2) came and when they got there they fought with his father (the priest). All in all this witness testified that he did not take part in the killing of the two people.

DW14 Stephen Tsabedze (accused no. 16). He is also a member of the New Heaven Church in Zion. On the 16th March 1997, he went to the grazing fields with his younger brother to look for a missing cow on the instruction of his mother. They found the missing cow and took it home. He then went back to South Africa where he was working afterwards he got a message that his father wanted him back home. When he rushed home he was told that the police were looking for him. He went to Piggs Peak Police Station where he was arrested for this offence. He got to know there that the deceased had been killed.

This then disposes of the defence case. No witnesses were called to support their defence.

The court then heard submissions. Both counsel advanced lengthy and incisive submissions in view of the complexity of this case and the number of accused persons involved. For the sake of brevity I am not going to outline them in detail save to point out the salient points touched upon.

The crown took the view that it had proved its case beyond a reasonable doubt (R vs Difford 1937 A.D. 370 at 374 and Hoffman and Zeffert, South African Law of Evidence (4th ED) page 525). The facts proved as follows:

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ΑλλτηεαχχυσεδπερσονσασαρεβεφορεχουρταρεαλλρεσιδεντσοφΜασηοβενιαρεαιντηεΝορτηερνΗηοηηο
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ΑλλτηεαχχυσεδπερσονσαρεμεμβερσοφτηεΖιονιστσεχτ
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ΑλλτηεαχχυσεδπερσονσαρεβεφορεχουρταρεμεμβερσοφτηεΝεωΗεαϖενΒηυρχηινΖιονανδορχλοσελψασσοχιατεδτοτηεσαιδχηυρχη
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ΑλλτηεαχχυσεδπερσονσοντηεμορνινγοφτηετηΜαρχηηαδβεενατΜασηοβενιανδαλλοφτηεμοντηατδαψηαδβεεντοΜανδλενκοσιΣηονγωε’σηομεστεαδ
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ΑλλτηεαχχυσεδπερσονωερεσυβσεθυεντλψαρρεστεδφορτηεμυρδεροφΜανδλενκοσιΣηονγωεανδηισωιφευπονηαϖινγσυρρενδερεδτηεμσελϖεσατΗοροΠολιχεΠοστ
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ΤηεαχχυσεδπερσονσωερεμεμβερσοφτηεΝεωΗεαϖενΒηυρχηινΖιονχηοιρ
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ΤηεδεφενχεοντηεοτηερηανδαργυεδπερχοντραΜρΝτιωανεαργυεδατλενγτηΗετοοκτηεχουρττηρουγητηεεϖιδενχεοφεαχηαχχυσεδπερσονσσηοωινγηοωεαχηαχχυσεδπερσονχαννοτβεηελδλιαβλεφορτηεδεατηοφτηετωοδεχεασεδπερσονσΙαμνοτγοινγτορεπεατωηατηεσυβμιττεδβυτωιλλρεϖερττοσομεασπεχτσοφωηατηεσυβμιττεδινμψχονχλυδινγρεμαρκσΤηεχουρτωασρεφερρεδτοτηεχελεβρατεδχασεσοφΣϖσΔιφφορδσυπραανδτηατοφΣϖσΜσυπρατοωειγητηεεϖιδενχεοφτηεαχχυσεδπερσονσΜρΝτιωανεαργυεδτηαττηεχροωνδιδνοτχαλλΜδυδυζιωηοαχχορδινγτοτηεεϖιδενχεωαστηεονεωηοανσωερεδτοτηεδογσ’βαρκινγοντηεινστρυχτιονοφηισφατηερΗερεωεαρεδεαλινγωιτητηελιαβιλιτψοφμοβτηεχροωνωαστοτακεονεοφτηεαχχυσεδπερσονσανδμακεηιμαναχχομπλιχεωιτνεσστογιϖετηεχουρταν

ινσιδεστορψ

Τηεχροωνισηαρδπρεσσεδτοπροϖετηαττηεαχχυσεδπερσονσηαδτηενεχεσσαρψιντεντιοντομυρδερτηετωοπεοπλε

ΙτωασφυρτηεραργυεδονβεηαλφοφτηεαχχυσεδπερσονστηαττηεχροωνωιτνεσσεσωηοχαμετογιϖεεϖιδενχειντηισχασεαρεβιττεραβουτωηατηαδηαππενεδΠΩ’στεστιμονψωασατταχκεδασβεινγπαρτιαλιντηατηετολδτηεχουρττηατηισμοτηερ’σεψεωασινυρεδδυρινγτηεατταχκσυχητηατιτχαμεουτψεττηεμεδιχαλρεπορτεντερεδασεξηιβιτ

Ο

ισσιλενταβουττηισιμπορταντφαχτΦυρτηερτηαττηεεϖιδενχεοφΠΩανδΠΩχοντραδιχτεδεαχηοτηεριντηατΠΩτολδτηεχουρττηατηεσαωαχχυσεδνοανδατταχκινγηισπαρεντσανδτηαττηερεστοφτηεαχχυσεδπερσονσωερεπρεσεντβυτδιδνοτδοανψτηινγΠΩχοντραρψτοΠΩσαιδεϖερψονεπαρτιχιπατεδβψειτηερχηασινγαφτερηερμοτηερορηαχκινγηερφατηερΤηισεϖιδενχειστοταλλψδιφφερεντφρομτηατγιϖενβψΠΩΤηεντηεθυεστιοντηεχουρτηαστοανσωερωηιχηϖερσιοντοαχχεπτ

ΜρΝτιωανεσυβμιττεδτηαττηεχροωνηαδμαδεαχονχεσσιοναττηεχλοσεοφτηεχροωνχασετηαττηερεωασνοσυφφιχιεντχασεαγαινσταχχυσεδνοανδτοσατισφψτηερεθυιρεμεντσοφΣεχτιονοφτηεΒριμιναλΠροχεδυρεανδΕϖιδενχεΑχτασαμενδεδανδτηυστηεψωερεδισχηαργεδΤηεχονχεσσιονσηουλδηαϖεβεεναππλιεδαχροσστηεβοαρδσυχητηαταλλτηεαχχυσεδπερσονσσηουλδηαϖεβεενδισχηαργεδαττηεχλοσεοφτηεχροωνχασεσαϖεφοραχχυσεδνοανδΙτισΜρΝτιωανε’σχοντεντιοντηαττηεσεαχχυσεδπερσονσφαλλιντηεσαμεχατεγορψωιτηαχχυσεδνοανδεσπεχιαλλψϖιεωεδαγαινσττηεβαχκγρουνδοφτηεχονφλιχτινγεϖιδενχεβετωεενΠΩανδΠΩ

ΜρΝτιωανεφυρτηεραδδρεσσεδτηεχουρτατλενγτηοντηεδοχτρινεοφχομμονπυρποσεΗισϖιεωιστηαττηεχασεοφΣϖσΜγεδεζιανδοτηερσΣΑΑΔατπαγεσ–ισαταλλφουρσωιτητηεχασεινχασυΤηεπροποσιτιοναδϖανχεδιντηατχασεωηιχηαλσοδεαλτωιτηγρουπϖιολενχειναμινεχομπουνδωηερεφουρτεαμλεαδερσωερεκιλλεδιστηαττηεαχχυσεδχουλδβελιαβλεονλψιφχερταινπρερεθυισιτεσαρεσατισφιεδναμελψιαχχυσεδμυστβεπρεσεντωηερεϖιολενχεωασχομμιττεδηεμυστηαϖεβεεναωαρεοφτηεασσαυλτοντηεϖιχτιμσηεμυστηαϖειντενδεδτομακεχομμονχαυσεωιτητηοσεπερπετρατινγτηεασσαυλτηεμυστηαϖεμανιφεστεδηισσηαρινγοφτηεχομμονπυρποσεωιτητηεπερπετρατορσοφτηεασσαυλτβψηιμσελφπερφορμινγσομεαχτοφασσοχιατιονωιτητηεχονδυχτοφοτηερσανδηεμυστηαϖετηερεθυισιτεμενσρεαΙταππεαρστομεωιτητηεγρεατεστρεσπεχττοδεφενχεχουνσελτηαττηισχασεδοεσνοτλαψδοωνανψγενεραλπρινχιπλεσυχητηατιτδεπαρτεδφρομτηεδιχταινΣϖσΣαφατσαανδοτηερσσυπραιντηαττηελεαρνεδυδγειντηατχασεστατεδτηατιντηεαβσενχεοφπροοφοραπριοραγρεεμεντονεοφτηεαχχυσεδπερσονσαχχυσεδνοωηοωασνοτσηοωντοηαϖεχοντριβυτεδχαυσαλλψτοτηεκιλλινγορωουνδινγοφτηεοχχυπαντσοφροομχανβεηελδλιαβλεφορτηοσεεϖεντσοντηεβασισοφτηεδεχισιονινΣαφατσαονλψιφτηεαβοϖεμεντιονεδπρερεθυισιτεσαρεσατισφιεδΙτισνοτεντιρελψχορρεχττηαττηεχασεοφΜγεδεζιανδοτηερσοϖερρυλεδΣαφατσαΜρΝτιωανειμπλορεδτηεχουρττογιϖετηεοτηεραχχυσεδπερσονστηεβενεφιτοφτηεδουβτανδαχθυιττηεμιντηισχασε

ΙτωασφυρτηεραργυεδατλενγτηβψτηεδεφενχετηαττηεχαυτιοναδμινιστερεδβψΣεργεαντΗλατσηωαψοτοτηεαχχυσεδπερσονωηεντηεψαρεαλλεγεδτοσυρρενδερεδτηεωεαπονσατΗοροΠολιχεΠοστωασνοτινχονφορμιτψωιτητηελαωΤοτηισενδτηεχουρτωασδιρεχτεδτοτηεΒουρτοφΑππεαλυδγεμεντοφΡεξϖσΠετροσΜηλονγουνρεπορτεδ

ΛαστλψινρεσπεχτοφαχχυσεδνοανδιτιστηεδεφενχεχοντεντιοντηαττηερεωασαφιγητωηιχηενσυεδβετωεεντηεμανδτηεδεχεασεδινχουντονεΤηισφιγητωασπροϖοκεδβψτηεδεχεασεδηιμσελφσυχητηαττηεσεφουραχχυσεδπερσονσωερεαχτινγινσελφδεφενχεανδτηυστηεψσηουλδβεεξονερατεδφρομλιαβιλιτψιντηισχασε

ΤηεσεαρετηεισσυεσχονφροντινγμειντηισχασεΙηαϖεχονσιδερεδτηεεϖιδενχεινιτσεντιρετψανδαλσοτηεηελπφυλαργυμενταδϖανχεδβψβοτησιδεσΒεφορεπροχεεδινγωιτημψαναλψσισοφτηεεϖιδενχεανδμψχονχλυσιονστηερεονΙωισητοπαυσεανδουτλινετηελαωωηιχηοπερατεσινσυχηχιρχυμστανχεσΤηεχασεφορτηεχροωνηινγεσοντηεδοχτρινεοφχομμονπυρποσε

ΙτιστριτελαωτηαττηεεσσενχεοφτηισδοχτρινειστηατωηερετωοορμορεπεοπλεασσοχιατειναοιντυνλαωφυλεντερπρισεεαχηωιλλβερεσπονσιβλεφορτηεαχτσοφηισφελλοωσωηιχηφαλλωιτηιντηειρχομμονδεσιγνοροβεχτσεεΜχΚενζιεϖςανδερΜερωεΑΔΓαινσωορτηψΩΛΔΣηαικΣΑΑΑΓυμεδζεΣΑΤΚΣαφατσαΣΑΑΤηεχρυχιαλρεθυιρεμεντιστηαττηεπερσονσμυσταλληαϖετηειντεντιοντομυρδερανδτοασσιστονεανοτηερινχομμιττινγτηεμυρδερΤηερενεεδνοτνεχεσσαρψβεαπριορχονσπιραχψΤηεχομμονπυρποσεμαψαλσοαρισεσποντανεουσλψανδεϖιδενχεοφτηεβεηαϖιουροφτηεδιφφερεντχοαχχυσεδμαψλεαδαχουρττοχονχλυδετηαττηισηασηαππενεδσεεΣψνμανονΒριμιναλΛαωνδΕΔατπαγεανδτηεχασεσχιτεδτηερεατΤηεοπερατιονοφτηεδοχτρινεδοεσνοτρεθυιρεεαχηπαρτιχιπανττοκνοωορφορεσεεινδεταιλτηεεξαχτωαψινωηιχητηευνλαωφυλρεσυλτωιλλβεβρουγηταβουτσεεΣηεζιΣΑΑΤροσανεΣΑΟΝηιριΣΑΡΑ

ΙφτηερεισπροοφοφαδεφινιτεπριοραγρεεμεντβετωεεντηεπαρτιχιπαντστηαταγρεεμεντμαψσερϖεασπροοφοφτηεχαυσαλχοννεχτιονβετωεεντηεχονδυχτοφτηεινδιϖιδυαλπαρτιχιπαντσανδτηεδεατηοφτηεδεχεασεδαχουρτχαντηενχονϖιχττηεπαρτιχιπαντσοφμυρδερωιτηουτρεσορτινγτοτηεδοχτρινεοφχομμονπυρποσεΗοωεϖερτηερεισσελδομδιρεχτεϖιδενχεοφαχονσπιραχψανδχουρτσαρετηερεφορευσυαλλψοβλιγεδτοδεδυχετηεεξιστενχεοφαχομμονπυρποσεφρομτηεχονδυχτοφτηεδιφφερενταχχυσεδΤοινσιστυπονπροοφοφχαυσατιονινιτσχλασσιχαλμεανινγοφχονδιτιοσινεθυανονωουλδμακειτνοτονλψϖερψδιφφιχυλτβυτϖιρτυαλλψιμποσσιβλετοπροϖετηατπαρτιχιπαντσιναχομμονϖεντυρεηαδχομμιττεδμυρδερυνλεσσονεσυβσταντιαλλψμοδιφιεδτηεορδιναρψμεανινγοφτηεωορδχαυσατιονΤηισισπαρτιχυλαρλψσοιφτηενυμβεροφπαρτιχιπαντσισφαιρλψλαργε

ΙτισαλσοτριτελαωτηατφοραναχχυσεδτοηαϖεαχομμονπυρποσεωιτηοτηερστοχομμιτμυρδεριτισνοτνεχεσσαρψτηατηισιντεντιοντοκιλλβεπρεσεντιντηεφορμοφδολυσδιρεχτυσΙτισσυφφιχιεντιφηισιντεντιοντακεστηεφορμοφδολυσεϖεντυαλισ

ΦυρτηεριντηεχασεοφΣϖΚηυμαλοΕνΑνδερεΣΑαυδγμεντινΑφρικαανσωηερετηεφαχτσοφτηατχασεχλοσελψρεσεμβλετηεχασευνδερεξαμινατιονηελδασφολλοωσωηερετηετριαλχουρτηαδινφερρεδτηεαχχυσεδπερσονσιντεντιονφρομτηεφολλοωινγιτηαττηερεωασονλψονεχροωδωηιχηατταχκεδτηεδεχεασεδηομεανδτηεαχχυσεδηαδβεενμεμβερσοφτηεχροωδτηεχροωδηαδαχτεδτηρουγηουτωιτηονλψονειντεντιονϖιζτοκιλλτηεδεχεασεδανδεϖερψτηινγωηιχητηεχροωδηαδδονεφρομτηετιμετηαττηεψσταρτεδτηροωινγστονεσαττηεδεχεασεδ’σηομευντιληισηυτωασσετονφιρεηαδβεενδονεινφυρτηερανχεοφτηειντεντιοντοκιλληιμΤηεχουρτηελδοναππεαλτηαττηετριαλχουρτερρεδιναδοπτινγσυχηαναππροαχηΙτωασηελδασφολλοωσατπαγε
 

ΤηεαππελλαντσηαδαππεαρεδβεφορετηεχουρτασινδιϖιδυαλσανδτηεχουρτχουλδνοτφινδανψαππελλαντγυιλτψυνλεσσιτωασπροϖεδβεψονδρεασοναβλεδουβττηαττηεαππελλαντηαδτηειντεντιοντοκιλλΤηετριαλχουρτηαδμαδετηεφινδινγοφιντεντιοντοκιλλοναγενεραλιζεδβασισιτηαδβεενφουνδτηαταλλτηεαππελλαντσηαδτηενεχεσσαρψιντεντιονβεχαυσετηεχροωδηαδτηειντεντιονΩηατεϖερτηεποσιτιονμιγητβεινπσψχηολογψορσοχιολογψινχριμιναλλαωαχροωδασσυχηχουλδνοτηαϖεαρελεϖαντιντεντιονανδωηερετηεχροωδ’σιντεντιονωασσποκενοφιντηισχοντεξτωηατοφωασμεαντωαστηειντεντιονοφεϖερψμεμβεροφτηεχροωδΙφιντεντιονωαστοβεινφερρεδφρομτηεστατεοφμινδοφαλαργεργρουποφπεοπλεσυχηανινφερενχεωουλδονλψβευστιφιεδωηερετηεχουρτηαδνορεασοναβλεδουβττηαταλλτηεμεμβερσοφτηεγρουπηαδσυχηαυνανιμουσιντεντιονανδτηαταχχυσεδωασαμεμβεροφσυχηγρουπιντηεσενσετηατηεσηαρεδσυχηιντεντιον

μψεμπηασισ


Τηιστηερεφορειστηελεγαλφραμεωορκωιτηινωηιχητηισχασειστοβεδεχιδεδ

ΝοωΙπροχεεδτοδετερμινετηεφαχτσϖισαϖιστηεσυβμισσιονσβψβοτηχουνσελΤηεχροωνχασεαγαινσττηεαχχυσεδπερσονσισβασεδοντηεδοχτρινεοφχομμονπυρποσεΙαγρεεωιτηΜρΝτιωανεφορτηεδεφενχετηαττηεαχχυσεδπερσονσιντηισχασεχανβεδιϖιδεδιντοτωογρουπσΤηεφιρστγρουπωηιχηχομπρισεσαχχυσεδνοανδβεινγΣιβυσισοΣηονγωεΜιλτονΜαμβαΡοβερτΣηονγωεανδΝτομβιφυτηιΣηονγωερεσπεχτιϖελψΤηεσεχονδγρουπχομπρισετηερεστοφτηεαχχυσεδπερσονσΠροϖενφαχτσβεφορετηισχουρταρετηαταλλτηεαχχυσεδπερσονσαρεμεμβερσοφτηεΖιονιστσεχταλλτηεαχχυσεδπερσονσαρερεσιδεντσοφΜασηοβενιαρεαιντηεΝορτηερνΗηοηηοαλλτηεαχχυσεδπερσονσασαρεβεφορεχουρταρεμεμβερσοφτηεΝεωΗεαϖενΒηυρχηινΖιονανδορχλοσελψασσοχιατεδτοτηεσαιδχηυρχηαλλτηεαχχυσεδπερσονσοντηεμορνινγοφτηετηΜαρχηηαδβεενατΜασηοβενιανδαλλοφτηεμοντηατδαψηαδβεεντοΜανδλενκοσιΣηονγωε’σηομεστεαδαλλοφτηεαχχυσεδπερσονσειτηερσαωΜανδλενκοσιορηισωιφεΒυσισιωεΣηονγωεαλλτηεαχχυσεδπερσονσωερεσυβσεθυεντλψαρρεστεδφορμυρδεροφΜανδλενκοσιΣηονγωεανδηισωιφεΒυσισιωεΣηονγωευπονηαϖινγσυρρενδερεδτηεμσελϖεσατΗοροΠολιχεΠοστΤηεεϖιδενχεοφΑαρονΜχηεκεζαΜαμβαωασνοτδισπυτεδιντηισρεγαρδΜανδλενκοσιανδηισωιφεδιεδασαρεσυλτοφμυλτιπλεινυριεσινφλιχτεδοντηεμτηεωουνδσβεινγχυτωουνδσβρυισεσανδαβρασιονσαλλοϖερτηειρβοδιεσανδτηατονεοφτηεηυτσατΜανδλενκοσι’σηομεστεαδωασγυττεδδοωνβψφιρεΤηεσεφαχτσωερεπροϖεδανδαρενοτινδισπυτε

ΤηεποιντοφδιϖεργενχεωηιχηεμεργεδινανδδυρινγτηεχουρσεοφτηετριαλλαψαστοωηομυρδερεδτηεδεχεασεδπερσονσΜανδλενκοσιανδηισωιφεΑλλτηεαχχυσεδπερσονσδενψηαϖινγασσαυλτεδτηεδεχεασεδπερσονσινανψωαψΤηενυβοφτηειρδεφενχειστηαττηεψαλλαρριϖεδαττηεΣηονγωεηομεστεαδωελλαφτερτηεδεχεασεδπερσονσαλρεαδψινυρεδανδλψινγοντηεγρουνδανδχοϖερεδινβλοοδΦυρτηερτηεψηαδαρριϖεδαττηεΣηονγωεηομεστεαδατδιφφερενττιμεσανδηαδεαχηοφτηεμηαδνοτσεενανοτηεραττηεσαιδηομεστεαδεξχεπτμεετινγαττηεΗοροΠολιχεΠοστωηεναρρεστεδανδιντερρογατεδΑλλτηεαχχυσεδαρεπλεαδινγιγνορανχεαστοηοωτηεδεχεασεδπερσονσμεττηειρδεατηΗοωεϖερτηισισφαλλαχιουσινϖιεωοφτηεφαχττηατινδιϖιδυαλδεφενχεσοφτηεαχχυσεδπερσονσωερενοτπυττοτηεχροωνωιτνεσσεσΤηειμπρεσσιονχρεατεδδυρινγτηεχροωνχασεβψτηεδεφενχετηρουγηχροσσεξαμινατιονωασωηιχηωεαπονωασυσεδβψωηιχηαχχυσεδπερσονιντηισγορψασσαυλτΤηεσυβμισσιονσβψΜρΝτιωανετηατιτωασιμποσσιβλεφορηιμτοπυτεαχηαχχυσεδπερσονστορψτοτηεχροωνωιτνεσσεσινϖιεωοφτηειρνυμβερωιτητηεγρεατεστρεσπεχττοΜρΝτιωανετηισσυβμισσιονρινγσηολλοωιντηεφαχεοφεσταβλισηεδδιχτυμιντηεχασεσοφΣϖΠΣΑανδΡϖΔομινιχΜνγομεζυλυανδοτηερσΒριμΒασεΝουνρεπορτεδωηερειτωασπροπουνδεδιντηοσεχασεστηατιτωασοφυτμοστιμπορτανχεφορχουνσελφορτηεαχχυσεδτοπυτασμυχηοφτηεαχχυσεδχασεσφορτηεχουρτισεντιτλεδτοσεεανδηεαρτηερεαχτιονοφτηεχροωνωιτνεσσεστοεαχηανδεϖερψιμπορτανταλλεγατιονΙντηελαττερχασεΔομινιχΜνγομεζυλυτηελεαρνεδΒηιεφϑυστιχεΗανναηασηετηενωασελεγαντλψσυρμισεδτηισρεθυιρεμενττηυσ
 

ΙτισΙτηινκχλεαρφρομτηεφορεγοινγτηατφαιλυρεβψχουνσελτοχροσσεξαμινεονιμπορταντασπεχτσοφτηεπροσεχυτιονωιτνεσσεστεστιμονψμαψπλαχετηεδεφενχεατρισκοφαδϖερσεασπεχτσβεινγμαδεανδαδϖερσεινφερενχεβεινγδραωνΙφηεδοεσνοτχηαλλενγεαπαρτιχυλαριτεμοφεϖιδενχετηεναναδϖερσεινφερενχεμαψβεμαδετηαταττηετιμεοφχροσσεξαμινατιονηισινστρυχτιονσωερετηαττηευνχηαλλενγεδιτεμωασνοτδισπυτεδβψτηεαχχυσεδανδιφτηεαχχυσεδσυβσεθυεντλψγοεστοτηεωιτνεσσβοξανδδενιεστηεεϖιδενχεινθυεστιοντηεχουρτμαψινφερτηατηεηασχηανγεδηισστορψιντηειριντερϖενινγπεριοδοφτιμεΙτισαλσοιμπορτανττηατχουνσελσηουλδπυτδεφενχεχασεαχχυρατελψΙφηεδοεσνοτανδαχχυσεδσυβσεθυεντλψγιϖεσεϖιδενχεατϖαριανχεωιτηωηατωασπυττηεχουρτμαψαγαινινφερτηαττηερεηασβεεναχηανγειντηεαχχυσεδ’σστορψ


ΙντηεινσταντχασειτωασνεϖερσυγγεστεδονβεηαλφοφτηεαχχυσεδπερσονστηαττηεαχχυσεδπερσονσνεϖεραρριϖεδατΜανδλενκοσι’σηομεστεαδαλλαττηεσαμετιμεωηεντηεατταχκτοοκπλαχεΝειτηερωασιτδενιεδσπεχιφιχαλλψτηαττηεαχχυσεδπερσονσωερεπρεσεντωηεντηεατταχκτοοκπλαχε

ΤηεισσυελεφτισωηερεωιλλτηεχουρτγεττηεινφορματιονοφηοωτηεδεχεασεδμεττηειρδεατηΤηισινφορματιονμαψονλψχομεφρομεψεωιτνεσσεσορμαψχομετοτηεχονχλυσιονοφηοωτηεδεχεασεδπερσονσμεττηειρδεατηβψδραωινγανινφερενχεφρομτηεφαχτσπροϖεδΤηεχροωνχαλλεδτηρεεεψεωιτνεσσεσωηοσαωηοωτηεδεχεασεδπερσονσμεττηειρδεατηΤηεσεαρε

                  ΠΩΝηλανηλαΣηονγωε
                  ΠΩΣιχελοΝγανεΔλαμινι
                  ΠΩΤηυλισιλεΣηονγωε

ΤηεσεωιτνεσσεσδεσχριβεδηοωτηειρφατηερανδμοτηερωερεατταχκεδβψαμοβοφπεοπλεωηιχημοβχονσιστεδοφτηεαχχυσεδπερσονσανδτηερολεπλαψεδβψεαχηοφτηεμιντηεατταχκΤηεμαορρολεπλαψερσινγιϖινγαναχχουνταστοωηατηαππενεδοντηετηΜαρχηαρεΠΩανδΠΩΓραντεδτηεσεωιτνεσσεσινϖιεωοφτηεγηαστλψσχεναριουνφολδινγβεφορετηειρεψεσχαννοτβεεξπεχτεδτοσεεανδρελατεινσιμιλαρτερμσωηαττοοκπλαχεΙτηασβεεναχχεπτεδινχριμιναλλαωτηατνοτωοωιτνεσσεσχανδεσχριβεεϖεντστηεσαμεωασασσομανψφαχτορσμαψχοντριβυτετομακετηειρδεσχριπτιονσδιφφερεντΙντηεινσταντχασετηεσιτυατιονωασοφαγρυεσομενατυρεφορτωοψουνγπεοπλεσεεινγτηειρπαρεντσβεινγβυτχηερεδτηατωαψτοηαϖεσεεντηεσαμετηινγσαττηεσαμετιμεΟναρριϖαλοφτηετηρεεμενινηεαϖψχοατσβρανδισηινγπανγαστηεψρανηεχτερσκετερ

ΤηεεϖιδενχεωηιχηιμπλιχατεστηεμχομεφρομΠΩανδΠΩωηοτολδτηεχουρττηαττηεψσαωαχχυσεδνοανδαστηεπεοπλεωηοσπεχιφιχαλλψραναφτερτηειρπαρεντσΑχχυσεδνοανδωερετηεονεσωηοηαχκεδτηεμΤηεοτηερσαχχυσεδνοανδωερεαχτινγιντανδεμωιτητηετηρεεμαινπερπετρατορσΤηεστορψβψαχχυσεδνοανδτηατιτωασΜανδλενκοσιωηοσταρτεδτηεφιγητανδτηερεωασκιχκινγανδπυνχηινγφρομβοτησιδεσιντηεφαχεοφτηεεϖιδενχεβεφορεχουρττηαττηεψωερεχαρρψινγστιχκσωαλκινγστιχκσανδτηελικειστοταλλψδεϖοιδοφτρυτηΗοωδοεσονεεξπλαιναωαψσυχηινυριεσοντηεβοδιεσοφτηεδεχεασεδπερσονσ?ΤηεσαιδφιγητηαππενινγαττηεσαμετιμεαστηεατταχκδεσχριβεδβψΠωανδΠΩΤηεονλψχονχλυσιοντηατχανβεδραωνφρομτηισσετοφφαχτσιστηαττηεψαρετηεπερπετρατορσοφτηισχριμεΑσφορτηεοτηεραχχυσεδπερσονστηεψαρεαβσολϖεδβψτηετεστιμονψοφΠΩωηοτολδτηεχουρττηαταχχυσεδνοΔαλαδιΜαλυλεκαδιδνοτηινγηεωασμερελψστανδινγτηερεΑχχυσεδνοΜαχιλονγοΜαμβαωασπρεσεντβυτδιδνοτδοανψτηινγΑχχυσεδνοΣιπηιωεΣηονγωεηεσαιδηεδιδνοτσεεηερδοινγανψτηινγΤηεσαμεαππλιεστοαχχυσεδνοΣινδιΚηυμαλοαχχυσεδνοΖοδϖωαΜαμβααχχυσεδνοΤηοβιλεΤσαβεδζεανδαχχυσεδνοΒοψΜαμβαΑσφοραχχυσεδνοΦαναΜκηονταηεσαιδηεδιδνοτκνοωηοωτηισαχχυσεδπερσονφεατυρεδιντηισματτερΑχχυσεδνοΜφανυζιλεΜαλυλεκαωασπρεσεντβυτδιδνοτδοανψτηινγΑχχυσεδνοΣτεπηενΤσαβεδζεωασπρεσεντβυτραναωαψΤηεσεαχχυσεδπερσονσασαφορεμεντιονεδαρετηυσγιϖεντηεβενεφιτοφτηεδουβταρετηυσφουνδνοτγυιλτψανδαχθυιττεδ

Τηεσεαχχυσεδπερσονσμαψηαϖεβεενπρεσεντωηεντηεασσαυλττοοκπλαχεβυτιτισνοτχλεαρφρομτηιστεστιμονψωηοδιδωηατ

ΑσφοραχχυσεδνοανδΙηαϖενοηεσιτατιοναταλλτηαττηεψχομμιττεδτηισοφφενχεΙνϖιεωοφτηεχιρχυμστανχεσοφτηεχασεΙφινδτηαττηερεθυιρεμεντσινΣϖΚηυμαλοΕνΑνδερεΣΑαρεσατισφιεδΙνχριμιναλλαωαχροωδχαννοτηαϖειντεντανδιφιτισαττεμπτεδτοινφεραχχυσεδινφερενχεχανονλψβευστιφιεδωηερετηεχουρτηασνορεασοναβλεδουβττηαττηεμεμβερσοφτηεδεεδηαδσυχηυνανιμουσιντεντανδτηαττηεαχχυσεδωασαμεμβεροφτηεγρουπιντηεσενσετηατηεσηαρεδσυχηιντεντΙντηεχασεινχασυονεχαννοτεσχαπετηειρρεσιστιβλεχονχλυσιοντηαττηεσεπεοπλεηαδτηειντεντιοντοκιλλτηετωοπεοπλεΟνεδοεσνοτηαχκπεοπλετηεωαψτηεψδιδτοτηεδεχεασεδπερσονσιφονεισνοτιντενδινγτοκιλλΤηεχομμονπυρποσεωιτηοτηερστοχομμιτμυρδεριτισνοτνεχεσσαρψτηατηισιντεντιοντοκιλλβεπρεσεντιντηεφορμοφδολυσδιρεχτυσΙτισσυφφιχιεντιφηισιντεντιοντακεστηεφορμοφδολυσεϖεντυαλισΤηεσεπεοπλεηαδαστονετογρινδωιτητηεδεχεασεδΤηεαχχυσεδπερσονσωερεμεμβερσοφτηενεωχηυρχηωηιχηδεφεχτεδφρομτηεΣιβετσαμοψαΒηυρχηινΖιονανδορασσοχιατεδτοτηενεωχηυρχηβψμεμβερσηιπτοτηεΝεωΗεαϖενΒηυρχηινΖιονΤηεαχχυσεδπερσοναλλβελιεϖεδτηατΜανδλενκοσιΣηονγωεωασβεωιτχηινγτηεμανδασαρεσυλτοφωηιχηεαχηοφτηεμσυφφερεδδιφφερεντμαλαδιεσωηιχηωερεγραπηιχαλλψστατεδιντηειρεϖιδενχεινδεφενχε

ΙτισωιτηουτθυεστιοντηαττηεχροωνπροϖεδτηεδοχτρινεοφχομμονπυρποσεινρεσπεχτοφτηεσεαχχυσεδπερσονσασενυνχιατεδιναλονγλινεοφδεχιδεδχασεσσταρτινγφρομΣϖΣαφατσασυπραΣϖΣηαικανδοτηερσσυπραΣϖΚηοζασυπραΡϖΜγξωιτισυπραΡϖΔλαδλαανδοτηερσσυπραανδΣϖΜγεδεζα

ΟντηεθυεστιονοφωηετηερτηεαχχυσεδωερεπροπερλψχαυτιονεδιντηεχιρχυμστανχεσΙαγρεεωιτητηεσυβμισσιονσμαδεβψτηεχροωνιντηισρεγαρδΤηεαχχυσεδαφτερβεινγχαυτιονεδσομεωροτετηειρστατεμενττηεμσελϖεσσομεηαδτηειρστατεμενττακενβψπολιχεοφφιχερσΦρομτηεεϖιδενχετηερεισνοινδιχατιοντηατινπροδυχινγτηεσεεξηιβιτστηεψωερεπυτυνδερδυρεσσΟντηεχοντραρψιφονελοοκσαττηεεϖιδενχεφρομτηετιμετηεψλεφττηεδεχεασεδηομεστεαδσηοωστηαττηεψωερεκεεντοβρινγτηεμσελϖεσβεφορετηελαωΑστοτηεθυεστιονοφτηειδεντιτψοφτηεεξηιβιτσμψϖιεωιστηαττηεεξηιβιτσωερειδεντιφιεδβψΠΩανδΠΩανδαλσοτηεινϖεστιγατινγοφφιχερ

ΑφτερεξπλορινγτηετωιστσανδτυρνσοφτηισχασεΙχομετοτηεφολλοωινγχονχλυσιονσ

i)      

Accused no. 1, 2, 3, 5, 7 and 8 are guilty of the murder of Mandlenkosi Shongwe and his wife committed on the 16th March 1997, at Mashobeni area in the district of Hhohho.

ii)     
Accused no. 4, 6, 9, 10, 11, 12, 14 and 16 are not found guilty and are acquitted forthwith.

 


S.B. MAPHALALA
JUDGE

 


SENTENCE



 

 
Before passing sentence in this case I wish to make a few remarks more particularly in respect of Count one. I must say that this offence that you committed is a heinous offence. Although the court has found there are extenuating circumstances based on your believe of witchcraft nevertheless that makes it a grievous offence. I am well aware of your personal circumstances, which were related when you were giving evidence-in-chief. Your are relatively young people, and you are more or less related to each other and also to the deceased person in some way or the other, and that you also got children that you are to support, but you must also not forget that the victims of your acts also had children to look after. We heard a very chilling account here in court related by PW1 Nhlanhla Shongwe when he told the court what would happen to them after the death of their parents. He told the court that the two small toddlers or little children are now cared for by his grandfather who was old and might die anytime. The future of these children as well is bleak. There is also an uncanny aspect to this case, that is you are all proclaimed Christians, and that you believe in the teachings of Jesus Christ. You went further to produce a cassette which is now popular in the Zion circles, but you still have such a dark sinister belief in witchcraft. These two are two different ways of life. Christianity is a way of life or witchcraft practice is another way of life. These two do not come together in fact the one fight the other it is a contradiction for one to believe in both of them. This offence that you committed on this man was a very gruesome offence looking at the manner in which it was committed. If you look at the extent of the injuries on his body a cold sweat runs down ones spine. A man was killed in front of his wife and children in such a merciless fashion, surely the court has got to intervene in this instance and impose a harsh sentence in respect of this Count.

I am going to sentence each one of you to life imprisonment backdated to the date of your incarceration.

Now I come to Count two that is in respect of the wife. In respect of this Count as I found that there are no extenuating circumstances I am therefore bound by

Section 296 of Criminal Procedure and Evidence Act, that is the court is enjoined it has got no alternative but pass a sentence which is prescribed under Section 296 the sentence is spelt out under Section 297 the sentence is that of hanging.

Judge: Before the court passes this sentence the court would like to know whether each one of you would want to say anything?

Accused no. 1 nothing from accused no. 1.

Accused no. 2 nothing from accused no. 2.

Accused no. 3 nothing from accused no. 3.

Accused no. 5 nothing from accused no. 5.

Accused no. 7 although I was present I did not commit any of these crimes.

Accused no. 8 I did not lay my hands on any one of these people, which are involved in this two counts, yes I admit that I was present at that homestead.


 
Judge: Anything else? Non My Lord.

In terms of Section 297 of the Criminal Procedure and Evidence Act (as amended), you are hereby ordered to be returned to your place of safety, where you will kept until the day on which you will be hanged by the neck until you are dead.

May the Lord be with your Souls.

 

S.B. MAPHALALAJUDGE